Should Brian Nichols have four attorneys?
Legal fees dispute could delay courthouse shooting trial
By BETH WARREN
The Atlanta Journal-Constitution
Published on: 09/21/07
Jury selection is scheduled to begin in nine days, but another delay is likely in the death penalty trial of Fulton County Courthouse rampage suspect Brian Nichols.
The delay ? the third since October ? would be due to a continuing squabble over Nichols' lawyers' fees and whether he can keep four attorneys, twice as many as the average death penalty defendant.
Two years ago, Superior Court Judge Hilton Fuller appointed four lawyers to the case after citing factors ? such as widespread publicity and multiple victims and crime scenes ? that necessitated a larger-than-average defense team. The judge also agreed to higher attorney fees for North Carolina legal eagle Henderson Hill and his associate Jacob Sussman and veteran Atlanta attorney Robert McGlasson.
But during a pretrial hearing last week, attorneys with the Georgia Public Defender Standards Council, which pays for the representation of poor and death penalty defendants, said the agency is financially strapped and asked the judge to reduce the lawyer fees to the state rate of $95 an hour. McGlasson had already volunteered to a reduce his fees from $160 to $95 an hour, but Hill ? Nichols' lead attorney ? told the judge he and Sussman wouldn't agree to the salary reduction. Hill receives $175 an hour, while Sussman's fee is $125.
The council's lawyers also said the state will only pay for two attorneys, citing a new state law that only allows state reimbursement for two lawyers in death penalty cases.
The new law says the county may pay for a third attorney, but Fulton County Commissioners Tom Lowe and Bill Edwards said they won't agree to pay another dime on Nichols and they don't believe their fellow commissioners would either.
Hill argued that if Nichols couldn't get adequate representation, the judge should order prosecutors to drop their efforts for a death sentence. Fuller is unlikely to take the decision of punishment out of jurors' hands, but he has to resolve defense complaints.
The judge was expected to release his order Friday, so the case could move forward, with jury selection set to begin Oct. 2. But he is still mulling over the dilemma in what is expected to become the costliest trial in Georgia history.
Fuller now is expected to issue his order sometime next week. He has called a hearing Monday to consider an official gag order in the case, barring all parties from commenting to reporters. Prosecutors, defense attorneys and the judge have already stopped commenting about issues related to the case.
The defense lawyers said in court papers Friday, though, that they oppose the gag order.
Veteran Gwinnett County District Attorney Danny Porter criticized Fuller for giving in to what he sees as the defense's unreasonable pay requests. Like Fulton County prosecutors, Porter experienced frustrations trying to get a high-profile death penalty case to trial. It took six years.
"Judge Fuller created this mess and I don't think he'll be able to order his way out of it," Porter said. "He's created almost an unsolvable problem."
But others say Fuller is not to blame. Officials with the Georgia Public Defender Standards Council said in 2005 the case merited four lawyers and agreed to the higher fees. Fuller agreed.
Fuller, a senior judge from DeKalb County who has agreed to hear the case because Fulton judges have recused themselves, is widely respected throughout the state and is known as a cautious judge. He is widely seen as trying to ensure Nichols gets a fair trial to avoid having the verdict overturned on appeal, which would compound the expense with a second trial.
Some outside attorneys say Hill and Sussman could drop out of the case because the terms they agreed upon have not been honored. Others say they could face bar sanctions and damaged reputations if they backed out of a death penalty case on the eve of the trial.
If Fuller allowed Hill and Sussman to leave, Nichols would likely lose a third attorney, Penelope Marshall, who is volunteering her time at their request. That would leave McGlasson as the only attorney who has been on the case since 2005. He would likely get assistance from the Office of the Georgia Capital Defender, whose lawyers would need time to catch up to speed on the case.
Porter also dealt with attorney swapping in the six-year-long double-murder case of Wesley Harris.
"As soon as they bring in new attorneys, that would build in a six-month delay," Porter said.
The judge could try a different approach to keep the Nichols' defense team intact ? ordering the state or county to pay for one of the attorneys and to pay them the higher rates. But the state and county officials likely would appeal any such order to the Georgia Supreme Court, which could cause a delay. Others say the trial could go forward while the county or state appealed.
Veteran death penalty defense attorney Don Samuel, who is not working on the Nichols case, said he doesn't believe Nichols' attorneys will walk away from the case no matter what they are paid.
"My guess is they're playing chicken," Samuel said. "Good criminal lawyers don't abandon their clients."
Samuel said the pay squabble could be a defense tactic to delay the start of Nichols' trial for the deadly March 11, 2005 rampage that killed a judge, court reporter, sheriff's sergeant and federal customs agent. Attorneys who represent defendants facing the death penalty are schooled on ways to stall, buying their client more time and hopefully weakening the government's case.
"You don't like the flag in the courtroom, the color of the carpet, the position of the microphones on the table, you complain," Samuel said. "You put up obstacles and hurdles. Anything to stop the trial."
................................................................
